WASHINGTON -- Anyone who
went to the Supreme Court argument, as I did, hoping that the
court would rescue us from the election morass with a clear,
unifying decision would have left disappointed. In their
comments, the justices seemed as divided as the rest of us.

Indeed, the hour and a half of argument raised a troubling
new possibility: that the justices will divide in this case
along liberal/conservative lines. That would seriously damage
the one national institution that the public still
overwhelmingly respects, the Supreme Court of the United States.

Of course what the justices say from the bench is not a sure
clue to how they will decide. And there is a powerful
institutional imperative here: to come as close as possible to
unanimity. That is important for the country as for the court.
As someone, not a lawyer, said to me, "We need them to be
unanimous."

The argument focused on a hitherto little-noticed statute
passed by Congress after the disputed Hayes- Tilden election of
1876: Title 3, Section 5 of the U.S. Code. It says that if a
state, before choosing presidential electors, has enacted laws
on the handling of any contest "by judicial or other methods,"
determinations under those laws shall be conclusive when the
electoral vote is counted.

Theodore B. Olson, representing George W. Bush, argued that
the Florida Supreme Court had violated that statute by rewriting
the law of Florida in its Nov. 21 decision allowing manual
recounts to continue. The decision, he said, essentially rewrote
a state statute setting a Nov. 14 deadline for canvassers to
report their totals.

Mr. Olson ran into heavy weather right at the start. Justice
Sandra Day O'Connor and Chief Justice William Rehnquist said
Section 5 looked like a direction to Congress if it has to
resolve a dispute over electoral votes, not like a rule to be
enforced by the courts.

But when Laurence H. Tribe argued for Vice President Gore's
side, the same justices plus Antonin Scalia gave him a hard
time. They seemed to be assuming that Section 5 was judicially
enforceable — and suggested that the Florida Supreme Court had
violated it.

Intricate as it sounds, the interpretation of Section 5 may
answer a determinative question: Is there any issue of federal
law in this case, or is it only a matter of Florida law? If the
latter, the U.S. Supreme Court has no power to change the
Florida court's decision.

It was an extraordinary argument in the sense that, inside
that quiet marble courtroom, everyone was aware of the less
orderly external events. And in that regard, there were ironies.

"I don't mean to suggest . . .," Mr. Olson said, "that there
was a lack of integrity or any dishonesty by the Florida Supreme
Court." But that is exactly what Governor Bush and his point
man, James A. Baker III, suggested, loudly, when the Florida
court made its decision. Have Messrs. Bush and Baker thought
better of their disgraceful and dangerous words?

There was also a heavy irony in Mr. Olson's central argument
that the Florida Supreme Court had changed the rules after the
game was played. Governor Bush and his people have accused that
court of in effect making an ex post facto law.

Yet at this very moment Bush supporters in the Florida
Legislature are polishing up a plan to meet in special session
and choose the state's electors themselves, overriding the
people's vote if it turns out to be for Vice President Gore.
That would be ex post facto with a vengeance.

One curiosity is that none of the lawyers seem to have
noticed Section 2 of the 14th Amendment. Its framers, to prevent
any Southern denial of the vote to blacks after the Civil War,
provided that a state lose representatives in Congress if it
denied the right to vote "at any election for the choice of
electors for president. . . ."

That clause has never been enforced to reduce any state's
representation. But the language shows, at the least, that when
the 14th Amendment was adopted, in 1868, the assumption was that
citizens, not legislators, would choose presidential electors.
It makes the Florida Legislature's plans look even more brazen.

But for the moment we wait on the Supreme Court. "We are very
quiet there," Justice Holmes said in 1913, "but it is the quiet
of a storm center."